It is a little far-fetched to think — as some people seem to suggest — that the Indian government was in cahoots with Italy to allow the Italian marines who had fired on two Kerala fishermen to skip out of the country. The permission to the two marines to return to Italy — to vote in their national election based on little more than an undertaking by the Italian ambassador that they would return by March 22 — was consciously taken by the Supreme Court. From what we know so far, there is little to suggest that the court had taken the government’s advice on the sturdiness of such a diplomatic guarantee. It is the Supreme Court that should now be red in the face. When New Delhi got an official communication from Rome two days ago that the marines will not be sent back to face trial in India because Italy and India seemed to interpret the UN Convention on the Law of the Sea a little differently, the Supreme Court should have taken note of it formally, not least because its directions are being openly flouted by Rome. In this whole mess, the court clearly lost sight of the fact that it was dealing with the land of Machiavelli, not just an important centre of European renaissance. That a major democratic country of the international system will think nothing of disregarding a legal undertaking given to the highest court of a friendly nation appears baffling. As Rome insists there is a dispute over jurisdiction for purposes of trial, its ambassador should have declined to give an undertaking. But he did not do so, lulling the Indian judiciary into complacence. None of this can absolve the Congress Party. Its top leaders in Kerala, including defence minister A.K. Antony, had raised the pitch after the shooting of the fishermen in February 2012, clearly hoping to derive political mileage, without bothering to settle the issue of jurisdiction. When it was disputed by Rome that the incident occurred within Indian territorial waters, an impartial international mechanism to establish jurisdiction was the course to choose, instead of raising a chauvinistic hue and cry. Regrettably, the Supreme Court too didn’t take a balanced view and intervened only to assign jurisdiction away from Kerala and give it to Delhi. Now Prime Minister Manmohan Singh says violation of a legal undertaking by Italy is “unacceptable”, and there would be “consequences” if the marines don’t return as stipulated. This can be seen as a response to the beating his government is taking in Parliament. But it is not clear if he is declining the negotiations Rome is still offering while keeping the marines on trial in Italy.
